“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Wednesday, November 19, 2014

Marion County Election Board Concedes, Again, Slating Statute is Unconstitutional and Agrees, Again, Not to Enforce It

Plaintiff Zach Mulholland, the unslated Democratic state representative who had his election materials seized at the polls in the primary of 2012 despite a 2003 federal court injunction against the Marion County Election Board enforcing the law, has prevailed in his lawsuit. The ACLU of Indiana has just put out this press release:

Indianapolis--Political parties in Marion County cannot prevent the free
speech activities of candidates they do not back for election, and
county officials cannot enforce an unconstitutional law used to impede
such speech, a federal judge affirmed today.

Judge Sarah Evans Barker of the U.S. District Court, Southern
District of Indiana, in approving an agreed judgment filed by the
parties, ruled that Indiana's "slating" statute -- Indiana Code §
3-14-1-2(a)(2) and (3) -- cannot be enforced. The order also provided
that the Marion County Election Board cannot convene further hearings
concerning the 2012 primary election or the plaintiff in the lawsuit,
Zachary Mulholland, and required

Zach Mulholland

compensation and fees to be paid to
Mulholland and to the American Civil Liberties Union of Indiana, who
brought the case on his behalf.

In 2003 the Election Board conceded, in an approved judgment in a
separate federal lawsuit, that Indiana's slating statute -- which made
it a crime for a candidate in a primary election to publish election
materials linking him with other candidates without prior permission and
notice to the Board -- violated the First Amendment. Still, during the
2012 primary season, the Board enforced the statute against candidate
Mulholland by seizing his campaign literature at polling sites on
Election Day and demanding he appear for a hearing.

In March the ACLU of Indiana won an appeal in the U.S. Court of
Appeals for the Seventh Circuit on behalf of Mulholland, a candidate for
state representative, and the case was remanded to federal court for a
final judgment. Seventh Circuit Court Judge David Hamilton wrote in the
opinion that the Election Board's pursuit of action against Mulholland
"shaves very close to harassment or bad faith prosecution."

"The Judge's decision today is a major victory for our plaintiff and
for the First Amendment," said Kenneth J. Falk, ACLU of Indiana legal
director, who argued the case with ACLU of Indiana senior staff attorney
Gavin M. Rose. "Government agencies cannot enforce laws that have been
declared unconstitutional, and the Election Board cannot prevent voters
from receiving information about candidates for public office."

"We agree with the Seventh Circuit that this has been an outrageous
misuse of power," said Jane Henegar, ACLU of Indiana executive director.
"The Election Board has wasted hundreds of thousands of taxpayer
dollars on private attorneys' fees in defense of actions that are
indefensible. If the Board had admitted the unconstitutional nature of
its behavior two years ago, the total cost to the taxpayers would have
been a couple of hundred bucks, the cost of the seized pamphlets."

The decision, Zachary Mulholland v. Marion County Election Board,
1:12-CV-01502 SEB-MJD,was issued by the U.S. District Court for the
Southern District of Indiana, Indianapolis Division, on Nov. 18, 2014.

The Election Board's decision to seize Mulholland's literature in direct defiance of the 2003 consent decree, should have subjected the Board members, all of whom were attorneys and one a Marion County Superior judge as of January 1st, to sanctions for contempt of court. The non-Board attorneys who participated in the direct seizure of Mulholland's materials should also be brought before the court on contempt. They all almost certainly knew about the 2003 consent decree in which the Election Board admitted the statute was unconstitutional and agreed not to enforce it. Yet they arrogantly decided to enforce it against Mulholland anyway.

Maybe a bigger outrage is the extraordinary amount of tax dollars that were spent to pay attorneys to defend the Election Board's completely indefensible position in this case. That was identified in the press release and deserves repeating:

"The Election Board has wasted hundreds of thousands of taxpayer
dollars on private attorneys' fees in defense of actions that are
indefensible. If the Board had admitted the unconstitutional nature of
its behavior two years ago, the total cost to the taxpayers would have
been a couple of hundred bucks, the cost of the seized pamphlets."

It remains to be seen whether the Election Board will, a few years down the road, attempt to enforce the statute once again against an unslated candidate. Unfortunately in this case there were zero consequences for those who directly defied a federal court order. They got what they wanted - campaign literature taken away from a competitive non-slated candidate - and the only people who ended up paying a price were the taxpayers.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.